lc290 Partial Defences to Murder report - Law Commission

is an awareness of the possibility of needing to defend oneself in a
man’s psyche in a way which is not present for most women. It is
part of social conditioning for a man, though it plays a low-level role
in their makeup in times of peace and for most of men’s lives. If
attacked most men would be able to parry and retaliate in a
reasonable way. You should make allowances for this absence of
social conditioning, about how to deal with a fight, in a woman.
3. In addition, men fear injury less than women. If a fist came at a
woman, she would be afraid that her nose would be smashed, lips
burst and mis-shaped, a punch to the breast would be a more
painful and intimate an injury. Women are more vulnerable
physically and more fearful of being permanently damaged and are,
for those reasons too, less likely to be composed enough to
measure their response, when under attack.
4. They are usually weaker than men and would be less confident
that any blow they used in return would be strong enough to
discourage further violence, as opposed to annoying their assailant
and provoking more. A man would know his own strength and
expect to have a rough measure, from that, of how strong his
opponent is likely to be.
5. There is still a judgement for you to make but it is not, in case of a
woman under attack from a man as easy as it would be to assess
proportionality between roughly equivalent protagonists of the same
sex.
4.16 We would not suggest a specimen direction of that length, but the important thing
is that the judge should identify factors which the jury ought fairly to have in mind
in considering the defendant’s perception of her or his danger and the
reasonableness of her or his conduct.
THE CASE FOR SOME FORM OF PARTIAL DEFENCE TO MURDER WHICH IS ROOTED IN A
RESPONSE BASED ON FEAR
Different sources of concern
4.17 The case for a partial defence to murder based on fear may be said to arise in
two types of situation. The first is where the force used is unlawful, because it is
excessive, even though the circumstances are such that some use of force would
have been lawful in self-defence. The second is where the threat of attack was
insufficiently imminent to attract any possible defence of self-defence.
4.18 The arguments in favour of the creation of such a partial defence have
concentrated on two categories of defendant.
(1) The householder who responds in fear of physical attack from an intruder
and, whom it is said, the present law places in the exquisite dilemma of
having to respond “reasonably” or not at all.
(2) The abused child, or adult, who fears further physical abuse at the hands
of a serial abuser, who perceives no prospect of escape and who is well
aware that there is such a physical mismatch that to respond directly and
proportionately to an attack or an imminent attack will be futile and
dangerous. Such a person, who uses disproportionate force, or who
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